Postnuptial Agreement in the state of Nebraska
Full Question:
Answer:
As long as the document is drafted fairly, voluntarily, with proper disclosure and opportunity to consult independent counsel, a postnuptial agreement may be valid under Nebraska law. Such a contract is not enforceable if the surviving spouse proves that the waiver was executed involuntarily or that it was unconscionable at the time of execution. With respect to proving a contract or agreement unconscionable, the statute provides that the surviving spouse would have to show (1) that there was not fair and reasonable disclosure of the property or financial obligations of the decedent, (2) that the surviving spouse did not voluntarily waive such disclosure, and (3) that the surviving spouse did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the decedent.
The following is a NE statute:
30-2316 Waiver of right to elect and of other rights; enforceability.
(a) The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.
(b) A surviving spouse's waiver is not enforceable if the surviving spouse proves that:
(1) he or she did not execute the waiver voluntarily;
(2) the waiver was unconscionable when it was executed and, before execution of the waiver, he or she:
(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;
(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and
(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.
(c) An issue of unconscionability of a waiver is for decision by the court as a matter of law.
(d) Unless it provides to the contrary, a waiver of "all rights", or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation, divorce, or annulment is a waiver of all rights to elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to him or her from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.
Laws 1974, LB 354, § 38, UPC § 2-204; Laws 1994, LB 202, § 12.